Austin Attorney Discovers Greener Pastures

Local Austin attorney and graduate of the 2016 Austin Bar/Austin Young Lawyers Association Leadership Academy, Lisa Pittman, has discovered a unique practice niche by becoming a specialist in cannabis law. Austin Lawyer asked Pittman several questions regarding her practice area and about the recent (Texas) legislative session.

AL: Where does cannabis law stand in Texas after the 2017 legislative session?

In 2015, Texas enacted the Compassionate Use Act (SB 339), which is an extremely limited program allowing low-THC, high-CBD oil (THC and CBD are among many chemicals found in the cannabis plant) to be prescribed to a subset of children with a particular form of intractable epilepsy, whereby two doctors concur and all other medications have been exhausted for treatment. Only in February 2017 did the Texas Department of Public Safety, the agency charged with promulgating the regulations implementing the statute, adopt final rules for the program and take applications to produce medicine under it. The process has been problematic and still is not off the ground, though the DPS is required to issue at least three licenses to produce and distribute medicine to patients throughout Texas by September 1, 2017.

During the 2017 legislative session, Senator Menendez introduced SB 269, and Representatives Lucio III and Isaaks introduced its companion, HB 2107, in the House. These bills paved the way for comprehensive medical marijuana programs overlaid upon the framework of SB 339, and expanded the conditions that could be treated, changed the “prescription” requirement to “recommend,” allowed whole plant marijuana, and added protections from criminal prosecutions for patients and caregivers among other substantive and technical improvements necessary for SB 339 to function. These bills are similar to what is seen in the Pacific Northwest. Representative Moody also introduced HB 85, addressing the decriminalization of small amounts of marijuana.

SB 269 was filed on the first day for the pre-filing of bills but it never advanced. A hearing on whether to send HB 2107 to Calendar Committee was heard in May in front of the Public Health Committee. After hours of testimony lasting until nearly 2 a.m. from patients, parents, doctors, lawyers, veterans, and other community advocates about the proven medical benefits medical marijuana has provided for their symptoms and conditions, the Committee voted 7-2 to send the bill to Calendar Committee, where it unsurprisingly died. The Bill gained 77 co-authors and joint sponsors following that hearing, which was truly unprecedented support. Had it made it to the floor, chances are it would have progressed, hence its death by committee. Governor Abbott has proclaimed there will be no medical marijuana on his watch, and has refused to meet with veterans who have organized and requested a meeting with him or his chief of staff on the issue. Suffice it to say, I learned a lot about how politics operates this session!

In 2019, I predict some major traction on the medical marijuana front as the country reaches a critical mass in approval and legalization, and as the public begins to realize it must participate in the 2018 elections to get the right people in office to vote for these issues. Currently, many politicians in Texas are fearful if they vote in favor of regulated marijuana, it will cost them in their next election. Personally, I think most of the politicians are on board with the majority of the public at this point on the issue, but feel constrained by how the conservative agenda requires them to vote.

In your view, what are the biggest roadblocks at this point?

Either leadership needs to change or leadership needs to change its mind. Because of the edicts of current leadership, the existing SB 339 faces many roadblocks to functioning, despite its outward appearance of providing medicine to a small group of children. It was drafted to fail. First, the law requires doctors to prescribe the medicine. Cannabis is a Schedule 1 substance under the Controlled Substances Act, so doctors are prohibited from prescribing it. Should a physician be willing to prescribe it (and the doctors qualified to do so under Texas law are legislatively narrow), they risk losing their prescription writing privileges or their license to practice medicine altogether.

Access to the medicine is an issue because the Governor is allowing only three providers to service the entire state. The medicine cannot be mailed because a Schedule 1 substance cannot be placed in the US Postal Service, and driving from El Paso or Amarillo to Austin is a risky and expensive proposition for both the patient and provider.

The program has the most expensive licensing fees in the nation—$488,000, compared to the next highest state, New York, at $200,000—and other financial requirements make the ability to operate as a business in Texas servicing these patients an extremely expensive and losing proposition.

There are few criminal protections for those who can get the medicine. The qualifying condition is extremely narrow—it is intended to be an end-of-life comfort, not a quality of life medicine to allow a child to live seizure-free. Even if the law were written to include more children with epilepsy, or even other conditions, serious cases require a personalized formula of the whole cannabis plant, including the THC component (THC can produce a feeling of euphoria, but CBD does not). So, even if this law did not have all the legislative “gotchas” in it, the low-THC, high-CBD oil will not treat children with the most serious conditions. Children whose families have the means to do so are fleeing to Colorado, California, Oregon, and Washington for treatment. And they are thriving, by the way. The programs in states allowing only this low-THC restrictive form of cannabis oil are all failing, perhaps on purpose. The thought by politicians is that if a medication has no THC, then the risk of “diversion” (leaking of the marijuana to anyone who wants it to get high), is reduced. But the plant works as God made it. It is not nearly as medically effective when legislatively spliced as it is in Texas right now.

How did you get into this niche practice area?

Accidentally. After 15 years as a commercial business trial attorney, I decided to open an alternative, whole-health center run by women for women, called the Well Women Group. I have a revolutionary take on seeing the doctor and learning about plant-based natural therapies, preventative treatment, nutrition, counseling, and the like. To me, cannabis was just another plant like peppermint, lavender, or coconut that has been shown to have beneficial effects on the body for various things. I decided to become involved after being profoundly moved by the testimony of mothers in support of the 2015 Compassionate Use Act.

A couple of years ago, I went to a cannabis conference for women in Denver, simply on a fact-finding mission. I wanted to learn more about what cannabis can do so I could provide a place in Texas to consult about it. An Austin attorney who does of-counsel military law for Colorado firm Feldmann Nagel told me they were interested in taking their marijuana practice nationwide, and specifically had their eye on Texas. He recommended I meet with them while I was in Denver, so I did. Soon, the firm was hired by Louisiana State University to assist in rolling out its medical marijuana production and research plan under Louisiana’s new law, and they asked me to help them with the project. I ended up spearheading it, and thus began my complete immersion and education into all things marijuana: how to start and operate a cultivation facility, accompanying risks, and what was going on in this area around the country.

At the time, I just hopped on the bus to see where it would go, but it has been a fun and adventurous ride, and I have greatly enjoyed participating in the drafting and interpretation of brand new laws, fighting for legalization in Texas, and helping spread education and awareness about cannabis in my capacity as attorney rather than business owner—for now.

Incidentally, when I went to Denver, I defected from an American Bar Association meeting I was scheduled to attend at the same time. On August 11, 2017, I presented the American Bar Association’s first-ever marijuana law CLE at its annual meeting. I am now incredibly motivated by my work, I relish the daily challenges, and I’ve got to say, the clients are a lot more jovial and appreciative! I have actually found those mythic greener pastures, and see a unique opportunity as a woman to become an early leader and authority in this niche of law, not only in Texas, but in the country. The cannabis industry is still in its infancy both in the United States and around the world; very few law firms are willing to jeopardize their other business to serve a client that is dealing with a federally illegal substance, though it may be completely compliant under its state’s regulated marijuana program. And, because it has been illegal for so long, there are few experts on the laws.

What advice would you give to others who might be interested in this area of law?

Jump in! In Texas, because it is still illegal, you need to work with the activists and get involved in lobbying. You need to read about what’s happening in this industry around the country on a daily basis because it’s constantly changing, even in Colorado where it has been legal for quite some time. You must be willing to do a lot of free work for the cause. And in my case, I think you need to go to where the work is. Marijuana is dead in Texas for the next two years, so I’m moving to Colorado. But I’ll be back next session, and I’ll be taking no prisoners!

Originally published in the September, 2017 issue of Austin Lawyer, a publication of the Austin Bar Association in Austin, Texas.